Distributing an intimate image without consent is an offence under section 91Q of the Crimes Act 1900 which carries a maximum penalty of 3 years in prison and/or 100 penalty units, which is currently equivalent to $11,000.
The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence, and a person is entitled to an acquittal if they are unable to do so.
There are also a number of legal defences available to those who are going to court for the offence.
If you have been charged with distributing an intimate image without consent, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will review the allegations and advise you of your options and the best way forward.
Read on for more information about the offence itself, the matters the prosecution needs to prove, your options, the available defences and the applicable penalties.
What is the Offence of Distributing an Intimate Image Without Consent
Distributing an intimate image without consent is an offence under section 91Q of the Crimes Act 1900 (1900).
The section states that a person is guilty of the offence if he or she:
- Distributes an intimate image of another person
- Does so intentionally,
- Does so without the consent of the other person, and
- Does so knowing the other person did not consent, or being reckless as to whether the other person consented or not.
‘Distribute’ means to send, supply, exhibit, transmit or communicate to another person, or to make available for viewing or access by another person, whether in person or by electronic, digital or any other means.
An ‘intimate image’ is:
- An image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- An image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
‘Private parts’ are:
- A person’s genital area or anal area, whether bare or covered by underwear, or
- The breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
A person is engaged in a ‘private act’ if:
- He or she is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and
- The circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
Section 910 of the Act outlines the meaning of consent.
The section states that a person consents to the recording of an intimate image if he or she freely and voluntarily agrees to the recording of the intimate image.
It further states a person does not consent if he or she:
- Is under the age of 16 years or does not otherwise have the capacity to consent, including due to cognitive incapacity, or
- Does not have the opportunity to consent because the person is unconscious or asleep, or
- Consented because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
- Consented because the person was unlawfully detained.
This section makes clear that the above grounds are not the only ones which can be considered when determining whether a person consented.
A prosecution for distributing an intimate image without consent cannot be commenced against a person under the age of 16 years without the approval of the Director of Public Prosecutions.
What are the Penalties?
The maximum penalty for distributing an intimate image without consent is 3 years in prison and/or 100 penalty units.
However, is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
- A shorter prison term
An intensive correction order is not available if the person who was being recorded was under the age of 16 years.
What Does the Prosecution Have to Prove?
For a person to be found guilty of distributing an intimate image without consent, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond reasonable doubt:
- That the defendant distributed an intimate image of another person,
- That he or she did so intentionally,
- That he or she did so without the consent of the other person, and
- That he or she did so knowing the other person did not consent, or being reckless as to whether the other person consented or not.
The prosecution will fail if it cannot prove each of these elements to the required standard.
What are the Exceptions to the Offence?
Section 91T of the Act provides that a person is not guilty of distributing an intimate image without consent if:
- the conduct was for a genuine medical or scientific purpose, or
- the conduct was by a law enforcement officer for a genuine law enforcement purpose, or
- the conduct was required by a court or otherwise reasonably necessary for the purpose of legal proceedings, or
- a reasonable person would consider the conduct acceptable, having regard to the nature and content of the image, the circumstances in which it was recorded, the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image, the degree to which the actions affect the privacy of the person depicted in the image, and the relationship between the defendant and person depicted.
What are the Defences?
In addition to the requirement to prove each element of the offence, and the outlined exceptions to the offence, the prosecution must disprove any of the following defences if properly raised:
- Duress, which is where you were threatened or coerced,
- Necessity, where the act was necessary to avert danger, and
- Self-defence, where you engaged in the act to defend yourself or another
It must disprove any such defences beyond all reasonable doubt.
Your Options in Court
Pleading Not Guilty
Before you can be found guilty of distributing an intimate image without consent, the prosecution must prove beyond reasonable doubt that you:
- Distributed an intimate image of another person,
- Did so intentionally,
- Did so without the consent of the other person, and
- Did so knowing the other person did not consent, or being reckless as to whether the other person consented or not.
There are a number of ways to defend the charge, including raising the fact that:
- The prosecution cannot prove you distributed an intimate image of another person,
- The prosecution cannot prove you did so intentionally,
- The prosecution cannot prove the other person did not consent,
- The prosecution cannot prove you knew the other person did not consent, or were reckless as to whether the other person consented or not,
- An exception to the offence applies, and
- You raise a valid legal defence which the prosecution is not able to disprove beyond reasonable doubt.
If any of these matters prevail, you must be found not guilty of the offence.
A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.
Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.
In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.
Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.
You will also be spared the time, expense and stress of a defended hearing or trial.
Frequently Asked Questions
Why Choose Sydney Criminal Lawyers®?
Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:
Proven Track Record of Exceptional Results
Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.
Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.
Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.
We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.
Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.
Highest Level of Client Satisfaction
We have the best and most comprehensive client review record of any law firm in Australia.
Regular communication, accessibility and quality service are our team’s highest priorities.
We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.
We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
Australia’s Most Awarded Criminal Law Firm
We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.
The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.
We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.
We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.
Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.
Free First Appointment
For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.
We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.
Specialist Lawyer Guarantee
We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.
This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.
All NSW Courts
From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.
And we offer fixed fees for most criminal and traffic law cases throughout the state.
Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.
An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.
Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.
Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
Results-Focused Law Firm
Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.
The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.
Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.
No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.
The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
Team of Lawyers Behind You
Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.
Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.
A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.
In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.
Familiar with Magistrates and Judges
Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.
Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.
We have offices in locations across the Sydney Metropolitan Area and beyond, including:
- the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
- Liverpool, directly opposite Liverpool Local Court, and
- Parramatta, near the justice precinct.
We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.
For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.
If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at email@example.com.
How Can I Get Rid of an Intimate Image of Me?
Section 91S of the Crimes Act 1900 empowers a court who finds a person guilty of an offence under section 91P (recording an intimate image without consent) or 91Q (distributing an intimate image without consent) to order that the person takes reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed within a specified time period.
A person who fails to take this steps can face a maximum penalty of 2 years in prison and/or 50 penalty units, which is currently equivalent to $5,500.
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